GEORGIA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW
VOLUME 38
2009
NUMBER 1
SYMPOSIUM
INTERNATIONAL COMMERCIAL ARBITRATION:
FIFTY YEARS AFTER THE NEW YORK CONVENTION
INTRODUCTION: THE CONSTITUTIONAL LAW OF
INTERNATIONAL COMMERCIAL ARBITRATION
PeterB. Rutledge*
An exceptional feature of international arbitration is the extensive and
meaningful dialogue that takes places between scholars and practitioners in the
field. Unlike some other disciplines where the camps appear to talk past each
other, international arbitration enjoys a rich relationship between the two.
Practitioners have written some of the most important scholarly works in the
field, while scholars have worked on some of the most important cases. In
January 2009, the University of Georgia Law School and its Dean Rusk Center
were pleased to bring together an elite group of scholars and practitioners for
a day-long conference on the topic of international arbitration. The conference,
entitled "International Commercial Arbitration: Fifty Years After the New
York Convention," celebrated both the achievements in the field of the past
half-century and also highlighted the release of International Commercial
Arbitration, a path-breaking two-volume treatise by Gary Born, one of the
titans in the field whose professional accomplishments are matched by his
scholarly productivity.
Born, who provided the keynote address reproduced in this volume, offered
a fitting headline for the event, especially one organized by the Georgia
Journalof Internationaland ComparativeLaw. Born worked in the academy
before returning to full-time practice. He published his first article, the well
known Reflections on Judicial Jurisdiction,in this very journal over twenty
* Associate Professor of Law, University of Georgia School of Law.
GA. J. INT'L & COMP. L.
[Vol. 3 8:1
years ago.' While he has built his reputation as one of the world's leading
arbitrators and lawyers in the field, he has never abandoned his scholarly roots.
Over the years, he has published no fewer than four books and countless
articles, making him perhaps the paradigmatic example of someone who
straddles the scholarly and practical aspects of international arbitration.2
Bor's keynote address explores the synergies between arbitration law and
constitutional law. His historical survey stresses the importance of arbitration
as an expression of freedom-namely the freedom to decide, by contract, how
one's disputes will be resolved. He explains in rich historical detail how
famously repressive regimes banned the right to arbitrate while regimes bathed
in liberty enshrined the right to arbitrate among their most important freedoms.
In the second part of his talk, Born argues convincingly how the New York
Convention of 1958 can be conceptualized as a type of constitutional law of
arbitration. Much like the United States Constitution, the document is short,
contains general language amenable to interpretation, and has undergone
evolution in its meaning through decades of judicial (and arbitral)
determination, while the text remained unchanged. This central notion-of the
relation between arbitration and the Constitution-provides a unifying thread
for the other papers appearing in this symposium volume.
Linda Silberman, like Born, has been at the forefront of both scholarly
developments and professional activities in the field. Thus, she is especially
well placed to opine on some of the modem problems perhaps not foreseen by
the "Founders" of the constitutional law of international arbitration. While the
New York Convention, the seminal document in this field of constitutional law,
has proven remarkably resilient, several salient problems have emerged. One
is the issue of floating awards, that is the enforceability of awards vacated in
the seat of arbitration, the subject of a famous scholarly debate. The second is
the impact of procedural rules on the enforceability of awards due to doctrines
such as personal jurisdiction and forum nonconveniens. The third is a nagging
choice-of-law question over the law governing the enforceability of agreements
under Article II of the New York Convention. On all three topics, Silberman
Gary Born, Reflections on JudicialJurisdictionin InternationalCases, 17 GA. J. INT'L &
COMP. L. 1 (1987).
2 A select sample of Mr. Born's publications on the topic of international arbitration include:
INTERNATIONAL COMMERCIAL ARBITRATION: COMMENTARY AND MATERIALS (3d ed. 2008),
INTERNATIONAL ARBITRATION AND FORUM SELECTION AGREEMENTS: PLANNING, DRAFTING
AND ENFORCING (2d ed. 2006), INTERNATIONAL CtViL LITIGATION IN UNITED STATES COURTS
(4th ed. 2006), The Principle of Judicial Non-Interference in International Arbitral
Proceedings, 30 U. PA. J. INT'L L. 999 (2009), and Critical Observations on the Drafts
TransnationalRules ofCivil Procedure,33 TEX. INT'L L.J. 387 (1998).
2009]
INTRODUCTION
offers insightful analysis into how the constitutional law of arbitration can be
adapted to overcome these challenges.
Whereas Silberman offers a forward-looking perspective on arbitration,
Andreas Lowenfeld, Silberman's longtime collaborator and another titan in the
field, offers an incredible historical one. Lowenfeld, one of the architects of
the ICSID Convention, the seminal convention on international investment
arbitration, provides a "Founder's" view on that document, much like
Madison's notes on the constitutional convention. Lowenfeld was one of the
drafters of the document and teaches us some of the bumps along the road to
developing one of the most important pieces of the constitutional architecture
in international arbitration.
Complementing Lowenfeld's paper, Chris Ryan's paper also addresses an
area of investment arbitration, and offers an important example of how
different areas of arbitration can learn from each other. Ryan's paper explores
the curious question of why states comply with international investment law.
Ryan hypothesizes that the decision turns on a critical mix of factors including,
the liability risks, domestic expectations, the investment climate, the scope of
the obligation, and the reputational effects. This hypothesis has important
implications for the broader field of international commercial arbitration. It is
often asserted that parties to international arbitrations voluntarily comply with
awards more than 90% of the time. While oft-repeated, this assertion has rarely
been tested with any empirical rigor. Ryan's thesis suggests an important
avenue for further empirical research in the commercial field on why voluntary
compliance might occur.
Just like Ryan's paper teaches us what commercial arbitration can learn
from investment arbitration, Maureen Weston's paper offers lessons from the
mysterious world of sports arbitration. Weston, one of the rising scholars in
the field, teaches us how sports arbitration can literally destroy an athlete's
career-it is the equivalent of the "bet the company" case for the athlete. In
Weston's article, we learn about the importance of the American Arbitration
Association (AAA) to the system of sports arbitration, which shows how the
AAA, a critical player in the international arbitration scene as well, provides
a critical linkage between the fields. Weston's article also explores the
importance of appellate arbitral review in the sports arena. This idea of
appellate arbitral review periodically arises in the literature on international
commercial arbitration but remains an underexplored topic. Weston's careful
dissection of the current system of de novo review deserves close study by
those who would seek to import the appellate model into the broader
commercial setting.
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While these five papers provide an intellectual feast for those interested in
the field, modem technology has made even more resources available. In
addition to these five authors, several other prominent speakers spoke at and
attended the conference including, among others, George Bermann 3 (Chief
Reporter for the ALI Restatement on International Commercial Arbitration
Law) and the present or former heads of three of the major international
arbitration organizations in the world-the International Chamber of
Commerce,4 the American Arbitration Association, 5 and JAMS.6 Their
comments, along with a podcast of all conference proceedings, can be found
at the website of the Dean Rusk Center, http://www.uga.edu/ruskcenter/confe
rence.html#conferences.
A successful conference such as this one would not have been possible
without the support and contributions of many people. Though the entire list
is too numerous to mention in this essay, certain people deserve special thanks
including Dean Rebecca White,7 Ambassador Don Johnson8 and the entire staff
3 George Bermann is the Jean Mormet Professor of European Union Law and Walter
Gelhom Professor of Law at Columbia University Law School in New York, NY. Professor
Bermann also serves as the Director of the European Legal Studies Center. In addition to his
academic duties, Professor Bermann is the current President of the Academie Internationalede
Droit ComparJ.
' Anne Marie Whitesell is Of Counsel at Dechert, LLP. From 2001-2007, Ms. Whitesell
served as the Secretary General of the ICC International Court of Arbitration. As Secretary
General of the ICC, Ms. Whitesell supervised approximately 1,100 international arbitration cases
each year involving parties from over 120 countries.
' William K. Slate, II is the President and Chief Executive Office of the American
Arbitration Association. Previously, Mr. Slate practiced and taught law, and has lectured widely
on law, arbitration, and medication before numerous state and federal bar organizations. Mr.
Slate holds an M.B.A. degree from the Wharton School of the University of Pennsylvania, a
Juris Doctor degree from the University of Richmond Law School, and a B.A. degree from
Wake Forest University.
6 Robert Davidson has been the Executive Director of JAMS Arbitration Practice since
October 2003. Mr. Davidson is a retired senior litigation partner at a major international law
firm and a highly respected mediator and arbitrator with significant complex commercial and
international claims experience. He is the immediate past Chair of the Committee on Arbitration
of the New York City Bar Association and sits regularly as a sole arbitrator, chairman, or
member of tripartite panels in the numerous domestic and international arbitrations.
' Rebecca Hanner White is the Dean and J. Alton Hosch Professor of Law at the University
of Georgia School of Law. Before becoming the permanent dean of the School of Law in
October 2004, Dean White previously served as associate provost and associate vice president
of academic affairs for the University of Georgia. Dean White teaches in the areas of
employment discrimination, employment law, labor law, and labor arbitration.
' C. Donald Johnson is the Director of the Dean Rusk Center at the University of Georgia
School of Law. Beforejoining the Dean Rusk Center in June 2004, Ambassador Johnson served
as a U.S. Ambassador and congressman, practiced law in Washington, D.C., and served as chief
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INTRODUCTION
of the Dean Rusk Center and, especially, Mercedes Ball9 and Gabe Allen' ° of
the InternationalJournal, both of whom shouldered the lion's share of the
work.
textile negotiator in the office of the U.S. Trade Representative.
9 Mercedes Ball was the Executive Conference Editor for the thirty-seventh volume of the
GEORGIA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW.
10Gabriel Allen was the Editor in Chief of the thirty-seventh volume of the GEORGIA
JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW.